Hunt v. Jones

Complaint to Enforce Water-Eights — Judgment upon General Demurrer—Ground of Special Demurrer not Considered.—Upon appeal from a judgment rendered upon general demurrer to a complaint for an injunction to restrain the corporation defendant from shutting off the waters of a stream to which plaintiff by fair intendment alleged title by grant from an association under which defendant claimed title, any ground of special demurrer for uncertainty or indefiniteness, as to whether plaintiff took title from the association or from a corporation of the same name which succeeded to the rights of the association, and from which defendant immediately derived title, cannot be considered.

Ib.—Personal Covenant as to Water-Eight Affecting Land—Agreed Eate of Payment—Purchasers with Notice—Enforcement in Equity.—It is immaterial whether a covenant by a water company to charge plaintiff no higher rate than ten cents per inch for every twenty-four hours’ use upon his land of water purchased from the water company by plaintiff for a large price, sufficient to irrigate twenty acres of plaintiff’s land, was a covenant running with the land or was a personal covenant in relation to the water-right affecting his land, since in either ease equity will enforce the covenant against purchasers from the water company with notice of the facts, who will be compelled to furnish water on the same terms and will be restrained from shutting off the water for non-payment of a higher rate.